When a product is purchased in the United States, most consumers assume that it is safe for use and that the manufacturer has fully disclosed any risks associated with it. Unfortunately, some products make it to market without adequate disclosures of their potential harm. When this happens, a manufacturer or another party may be held liable in a product liability case for failing to warn consumers about the risk of harm.
At Wisner Baum, we understand what the legal principle means, how failure to warn cases work, and how to build cases that help make consumer products safer for everyone. State laws, however, provide only a limited period of time to bring such cases from the date of the injury and/or the date when you suspect the product caused your injury, thus, it is important to consult with an attorney immediately upon suspecting that the product, drug, or medical device caused you harm.
What Is Failure to Warn in Product Liability?
Manufacturers have a duty to warn consumers about any risks of harm associated with their products. Failing to warn consumers about a hazard or potential hazard may result in liability. The duty to warn not only exists at the time the product is initially manufactured but also if newly acquired information identifies a previously undisclosed risk. They may also be held legally responsible if the warning is incomplete or unclear.
How Failure to Warn Leads to Product Liability Claims
When someone is injured by a product, drug, or medical device, a product liability claim may be brought against the manufacturer, distributor, or another party. There are usually three legal principles that a product liability claim may be based on and in some cases, multiple principles may apply.
Legal principles in a product liability claim:
- Manufacturing defect: Occurs when a flaw in the manufacturing process causes a defect. This generally applies to a limited batch or lot of a specific product, but can also apply to an underlying manufacturing issue that affected all products manufactured using a certain process or at a certain plant.
- Design defect: Occurs when there is a flaw in the actual design of the product. This generally applies to the entire product line.
- Marketing defect or “failure to warn”: Occurs when a company fails to adequately disclose the safety risks associated with the use of a product.
While some cases may involve more than one of these principles, it is important to understand that a failure to warn claim can be brought even when the product was manufactured correctly and does not contain a design defect. Failure to warn or marketing defect cases help to hold companies accountable when they fail to issue clear warnings for a product that could have avoided preventable injuries.
Common Failure to Warn Mass Tort Lawsuits
Failure to warn complaints can occur across a wide range of different categories including consumer products, pharmaceutical drugs, medical devices, and consumables. These cases frequently occur after reports of injuries or adverse events. They may also happen when whistleblowers come forward or as the result of forced disclosure by a regulatory agency.
Failure to warn mass tort lawsuits handled by Wisner Baum:
- Antipsychotics: Legal documents allege that manufacturers of commonly prescribed antipsychotics, including Risperdal, Invega, and Zyprexa failed to warn consumers about the potential for adverse effects including an increased risk of breast cancer.
- Suboxone: It is alleged that drug manufacturers of the addiction treatment medication Suboxone failed to adequately warn patients about the potential for the drug to cause severe tooth decay.
- Depo-Provera: Reports indicate that the widely used birth control shot Depo-Provera may increase a person’s risk for developing a type of brain tumor known as a meningioma. Patients who suffered adverse health effects allege that the manufacturer failed to properly inform consumers about the risk.
- Dexcom: An investigation found that the manufacturer of the Dexcom G6 and G7 continuous glucose monitor marketed and sold devices that were adulterated with unapproved components. Lawsuits filed nationwide further allege the company failed to warn patients about the safety risks or misled consumers into believing the devices were more accurate than they were.
- Baby Food: A Congressional report in 2021 found that the majority of commercially sold baby food products contained high levels of toxic heavy metals, including cadmium, arsenic, lead, and mercury. Lawsuits accuse the manufacturers of these products of failing to warn consumers about the dangers of consuming the food.
- ByHeart Formula: After several infants became sickened by botulism, legal claims were filed against the manufacturer of ByHeart infant formula alleging the company failed to warn parents about the risk of bacterial contamination.
- Roundup: Lawsuits allege that the manufacturer of Roundup, Monsanto/Bayer, failed to warn consumers about the dangers associated with the use of the weedkiller, including that its active ingredient, glyphosate, may be linked with an increased risk of cancer.
Why Manufacturers Fail to Warn Consumers
In our experience, failure-to-warn cases often reveal a troubling pattern: companies identified risks internally but made calculated, and often profit-based decisions, to withhold that information from consumers and regulators.
There may be several reasons why manufacturers engage in this behavior. Corporations may fear that by disclosing risks, consumers would be unwilling to purchase the product at all, or not pay as much for the product. In reality, this practice prioritizes profits over consumer safety and only focuses on protecting product sales.
Companies may also avoid fully disclosing risks or downplay dangers to help to avoid recalls, maintain consumer confidence, or prevent negative press. They may further believe that there will be little to no regulatory consequences by failing to provide clear or complete warnings if the agencies failed to take action on similar matters.
Litigation can help to expose the reasons that a manufacturer failed to adequately warn consumers about the risks associated with a product, drug, or device. In some instances these lawsuits reveal that the failure to warn was intentional.
How Attorneys Prove a Failure to Warn Claim
In product liability claims based on a failure to warn, a person must be able to show that a manufacturer knew or should have known about the risks or dangers that were not disclosed. The best way to ensure that a company is held liable for failing to warn consumers is by consulting with an experienced attorney. Wisner Baum’s attorneys can help to investigate the claim, gather evidence, and pursue legal action against a potentially liable corporation.
Evidence that may be critical in a failure to warn claim:
- Safety documents
- Internal company communications
- Advertising and marketing materials
- Data from clinical trials
- Internal and independent testing
- Adverse event reports
- Labeling information
- Communications with regulatory agencies
- Industry standards
- Opinions from medical experts, human-factors analysts, and other specialists
Uncovering what a company knew and when they knew it is critical in failure to warn cases. For instance, documents known as “The Monsanto Papers,” proved critical in exposing corporate malfeasance and helped attorneys secure multi-billion dollar settlements and jury verdicts on behalf of Roundup victims nationwide.
Attorneys with Wisner Baum helped to uncover these documents during the discovery process. Their work unveiled a decades-long campaign by the corporation to manipulate data, influence regulatory action, and minimize the potential risks of the weedkiller’s main ingredient, glyphosate.
Compensation in Failure to Warn Mass Tort Lawsuits
Damages in failure to warn mass tort lawsuits may include recovery for medical expenses, lost wages, long-term disability, diminished earning capacity, and more. Depending on the circumstances of the case, individuals may be able to receive compensation for the emotional distress and pain and suffering caused by a company’s failure to warn. In egregious cases, a plaintiff may be entitled to punitive damages. Punitive damages are designed to punish defendants for intentional misconduct.
Product liability cases that become mass tort litigation may receive larger settlements due to their size and publicity. Public scrutiny may influence companies to settle and make recompense for wrongdoing alleged during court proceedings.
What To Do If You Believe a Product Failed to Warn You of Risks
If you believe a company failed to warn you about the risks of a product, it is strongly recommended that you speak with an attorney as soon as possible. Consulting with an experienced lawyer early in the process can help to protect your rights and increase the likelihood of success. Taking proactive steps like documenting exposure, providing detailed information about the progression of symptoms, and submitting evidence related to product use can help to strengthen your case.
In addition, laws only provide a limited time period for you to bring a claim once you have been injured and/or the problem has been discovered. If you miss that window of time, your claim will be barred, and you will be unable to recover. Therefore, it is very important that you speak with an attorney at soon as you even suspect a product, drug, or medical device might have injured you.
Why Work With Experienced Failure to Warn Attorneys at Wisner Baum?
The failure to warn attorneys at Wisner Baum have decades of experience holding corporations accountable for failing to adequately disclose known or discovered risks about a product. Attorneys at the firm played pivotal roles in past mass tort lawsuits, such as cases regarding Roundup, Zantac, Cymbalta, Actos, Gardasil, Valsartan, Benicar, Abilify, Home Depot Ladders, nutritional supplements, and many other products, drugs, and devices.
Attorneys with the firm have also served on leadership and steering committees in past and present product liability lawsuits. We have extensive experience managing complex scientific and regulatory evidence and have proven ourselves as leaders in the industry.
If you or a loved one has been injured by a product, drug, or medical device, contact Wisner Baum at (310) 207-3233 to schedule a free consultation.
